Todd R Lugli vs HomePeople Corp
Case No: 1487261
Hearing Date: Wed Apr 24, 2019 9:30

Nature of Proceedings: Vacate Dismissal

TENTATIVE RULING:

For the reasons set forth herein, the motion of plaintiffs to set aside the voluntary dismissal and to enter judgment pursuant to settlement is denied without prejudice.

Background:

On March 5, 2015, plaintiffs Todd R. Lugli, trustee of the Alpha Trust, and Nikki Lugli, trustee of the Nikki Trust, filed their original complaint in this action against defendants HomePeople Corporation dba Romio and Tarik Sansal. The complaint alleges causes of action for breach of contract, money lent, money had and received, and promissory fraud.

On October 28, 2015, counsel for the parties filed a notice reporting progress in settlement talks with the expectation of a forthcoming settlement agreement.

On December 9, 2015, plaintiffs filed a request for dismissal of the complaint with prejudice. Dismissal was entered as requested that day.

On March 27, 2019, plaintiffs filed this motion to vacate the voluntary dismissal and to enter judgment pursuant to the terms of the settlement. Attached to the motion collectively as exhibit A are: (1) a “settlement agreement”; (2) a promissory note as to the Alpha Trust; (3) a promissory note as to the Nikki Trust; (4) a stipulation for entry of judgment on the Nikki Trust promissory note; and, (5) a stipulation for entry of judgment on the Alpha Trust promissory note. No declaration or affidavit is attached to the motion providing any evidence as to the transaction or evidentiary foundation for the documents attached to the motion.

No opposition or other response to the motion has been filed.

Analysis:

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc., § 664.6.)

There are many procedural problems which prevent the court from addressing the motion on the merits at this time. The simplest, and most pervasive, problem is the complete lack of admissible evidence in support of the motion. Among the additional procedural deficiencies are:

The court has no present jurisdiction to act as requested by the motion. The voluntary request for dismissal does not reserve judgment to enforce the settlement pursuant to Code of Civil Procedure section 664.6. Instead, the only basis for reserved jurisdiction is in the settlement agreement that was never presented to the court prior to the dismissal. “Where a settlement agreement provides the court may retain jurisdiction to enforce the settlement, but the dismissal fails to provide for retained jurisdiction, plaintiff’s remedy is to move to vacate or modify the dismissal under CCP § 473(b) for ‘mistake, inadvertence or excusable neglect.’” (Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 12:082, citing Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21-23.) The present motion seeks to vacate the dismissal only pursuant to Code of Civil Procedure section 664.6. The motion does not purport to base the motion on section 473, subdivision (b), and does not contain any evidence necessary to support a motion under section 473, subdivision (b). Without an order setting aside the dismissal on grounds independent of section 664.6, the court has no jurisdiction to enforce the settlement under section 664.6. (Sayta v. Chu (2017) 17 Cal.App.5th 960, 967-968.)

The settlement agreement attached to the motion is not authenticated and does not in its present form constitute admissible evidence of an agreement enforceable under section 664.6.

The settlement agreement, even if assumed to be admissible evidence of an agreement under section 664.6, provides that judgment may be entered only upon default. (Motion, exhibit A, settlement agreement, ¶ 3.2.2.) There is no evidence of default presented with the motion.

Accordingly, the court will deny the motion without prejudice to the making procedurally appropriate further motions or to other remedies that may be available by law.